Time to Weigh In: FTC Seeks Comment on Additional Authority

Advertising Law

New Federal Trade Commission (FTC) Chair Joseph Simons already broached the topic with legislators, and now the agency has asked for public input on whether the Commission should be granted additional authority over corporate privacy and data security practices.

Testifying before Congress in July, Simons told lawmakers that the FTC “need[s] more authority.”

“Section 5 … cannot address all privacy and data security concerns in the marketplace,” said Simons. “For example, Section 5 does not provide for civil penalties, reducing the Commission’s deterrent capability. The Commission also lacks authority over non-profits and over common carrier activity, even though these acts or practices often have serious implications for consumer privacy and data security. Finally, the FTC lacks broad [Administrative Procedure Act] rulemaking authority for privacy and data security generally.”

After Simons testified, the FTC published a notice in the Federal Register seeking input from consumers, business representatives, economists, lawyers, academics, information technology professionals and other interested parties on extending its authority.

Specifically, the agency asked for comment on the “efficacy of the Commission’s use of its current remedial authority” and the “identification of any additional tools or authorities the Commission may need to adequately deter unfair and deceptive conduct related to privacy and data security.”

The FTC also wondered about its investigation, enforcement and remedial processes. Of particular interest to the Commission: “[w]hether the agency’s investigative process can be improved without diminishing the ability of the Commission to identify and prosecute prohibited conduct,” “the efficacy of the Commission’s current use of its remedial authority” and “the willingness of affected parties to cooperate with the Commission in conducting post-investigation and enforcement retrospectives.”

Feedback is intended to be a precursor to the FTC hearings scheduled for this fall. The agency intends to ask for additional comments on the topic of each hearing session and again upon completion of the series of hearings.

To read the FTC’s Federal Register Notice, click here.

Why it matters: Could regulatory change be coming to the FTC? The establishment of additional authority certainly seems to be a possibility, as the agency has instituted a legislative push, requested public comment and scheduled upcoming hearings that will feature discussion of the issue.



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